dismissed H-1B Case: Accounting

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kva~lc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 2 16 50946 Office: CALIFORNIA SERVICE CENTER ' Date: AUG 0 7 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101 (a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
did* 
Robert P. Wiem 
Administrative ~~~ea~~ffice 
WAC 04 2 16 50946 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a construction business that seeks to employ the beneficiary as a part-time accountant. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
5 10 1 (a)( 1 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence including a revised organizational chart, an office floor plan, 
samples of the petitioner's brochures and advertising, and a credentials evaluation for the beneficiary. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. fj 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge required to 
perform the duties is usually associated with the attainment of a baccalaureate or higher 
degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. fj 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a part-time accountant. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's June 24, 2004 letter in support of the petition; and the 
WAC 04 216 50946 
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petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: computing taxes owed; preparing tax returns; preparing, examining, and analyzing 
accounting and financial records for accuracy, completeness, and conformance to reporting and procedural 
standards; projecting future revenues and expenses; reporting financial information to management; 
establishing tables of accounts; assigning entries to proper accounts; developing, maintaining, and analyzing 
budgets and preparing related reports; developing, implementing, modifying, and documenting record 
keeping and accounting systems; preparing forms and manuals for accounting and bookkeeping personnel and 
directing "hislher" work activities; recommending, developing, and maintaining solutions to business and 
financial problems; and attending to cost accounting. The petitioner indicated that a qualified candidate for 
the job would possess a bachelor's degree in accounting, finance, or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the job is not an 
accountant position; it is a bookkeeping, accounting, or auditing clerk position. Citing to the Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the 
minimum requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific 
specialty. The director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of a management accountant, and is not an 
accounting clerk or bookkeeper position. According to counsel, the petitioner is a fast-growing business in 
need of an in-house accountant to perform complex duties such as "perform[ing] the company's budgets, cost 
management, costs accounting and assist[ing] in the strategic planning meetings with the principal owner . . ." 
Counsel states further that, according to the petitioner's organizational chart, there will be bookkeepers and 
accounting clerks under the beneficiary's supervision. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 8 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Handbook reports that the 
industry requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
At the outset, the AAO notes inconsistencies regarding the number of people that the petitioner employs. 
Information on the petition that was signed by the petitioner's presidentlprincipal owner on July 5, 2004, 
reflects that the petitioner was established in 1995, and has 18 employees. The petitioner's quarterly wage 
report for the quarter that ended on September 30, 2004, which was submitted in response to the director's 
request for additional evidence, reflects only four employees in July 2004, two employees in August 2004, 
and one employee in September 2004. In view of these conflicting numbers, the petitioner's organizational 
hierarchy is not clear. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
WAC 04 216 50946 
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of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It is also 
noted that although counsel asserts on appeal that the petitioner is "fast-growing," she does not provide 
sufficient evidence in support of her assertion, such as the petitioner's most recent federal income tax return. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). Also noted on appeal is counsel's statement that the petitioner now wants 
to reorganize his organizational hierarchy to include "an in-house accountant, bookkeepers, and accounting 
clerks." The petitioner, however, must establish eligibility at the time of filing the nonimmigrant visa petition. 
A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter of MicheIin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is that of an accountant. 
The Handbook, 2006-2007 edition, reveals that specific job duties vary widely among the four major fields of 
accounting: public, management, government accounting, and internal auditing. The closest category to the 
proffered position is the management accountant. In the Handbook, management accountants - also called cost, 
managerial, industrial, corporate, or private accountants - record and analyze the financial information of the 
companies for which they work. Other responsibilities include budgeting, performance evaluation, and cost and 
asset management. Usually, management accountants are part of executive teams involved in strategic planning 
or new-product development. They analyze and interpret the financial information that corporate executives need 
to make sound business decisions. They also prepare financial reports for nonmanagement groups, including 
stockholders, creditors, regulatory agencies, and tax authorities. Within accounting departments, they may work 
in various areas, including financial analysis, planning and budgeting, and cost accounting. 
In this case, information on the petition reflects that the petitioner is a construction business with 18 
employees and a gross annual income of $575,232.19. On appeal, counsel describes the proposed duties, in 
part, as "perform[ing] the company's budgets, cost management, costs accounting and assist[ing] in the 
strategic planning meetings with the principal owner . . ." As shown in the Handbook, bookkeeping, 
accounting, and auditing clerks produce financial statements and prepare reports and summaries for 
supervisors and managers, which would be used by them to make sound business decisions. Further, the 
Handbook reports that employers require most financial clerks to have at least a high school diploma, and for 
bookkeepers and accounting clerks, they often require an associate's degree in business or accounting.' The 
' According to the website for Skyline College, a community college located in San Mateo, California, 
(www.sk~linecollege.net), an associate's degree in business or accounting would involve learning the 
fundamentals about financial accounting principles and concepts, balance sheets, income statements, cash 
flow statements, the GAAP, forecasting, budgeting, cost accounting, break even analysis, developing and 
operating a computerized accounting system using tools such as QuickBooks, QuickBooks Pro, or Peachtree, 
an integrated commercial accounting software package that is used to review, differentiate, and interpret 
accounting concepts and data in a multitude of business situations. Thus, an associate's degree would provide 
knowledge about the GAAP and accounting techniques that serve the needs of management and facilitate 
decision-making. 
WAC 04 2 16 50946 
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Handbook's subsection "Sources of Additional Information" refers the reader to the Internet site for the 
Accreditation Council for Accountancy and Taxation (ACAT), the professional organization that provides the 
credentials Accredited Business Accountant@/Accredited Business Advisors@ (ABA).~ That Internet site 
reveals that a degree in accounting or a related specialty is not required for ABA accreditation. Eligibility for 
the eight-hour comprehensive examination for the ABA credential requires three years of "verifiable 
experience in accounting, taxation, financial services, or other field requiring a practical and theoretical 
knowledge of the subject matter covered on the ACAT Comprehensive ~xamination.'~ "Up to two" of the 
required years of work experience "may be satisfied through college credit." 
The evidence of record fails to convey that the beneficiary's specific performance of the record's list of 
generalized duties would require the theoretical and practical application of highly specialized knowledge 
4 attained by at least a bachelor's degree or the equivalent in accounting or any other specific specialty. 
Furthermore, the level of income generated by the petitioner has a direct and substantial bearing on the scope and 
depth of the beneficiary's proposed duties. Responsibility for the financial transactions described above differs 
vastly from responsibility associated with a far larger income or from a firm that is responsible for the accounting 
work of many clients. Counsel's assertion on appeal that the proffered position is that of a management 
accountant is noted. Without documentary evidence to support the claim, however, the assertion of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Consequently, the petitioner fails to 
establish that a baccalaureate or higher degree or its equivalent is the normal minimum requirement for entry into 
the particular position. 
The duties described in the Handbook do not primarily apply to the proffered position. According to the 
Handbook, accountants prepare financial reports for nonmanagement groups, including stockholders, creditors, 
regulatory agencies, and tax authorities, and usually, they are part of executive teams. The beneficiary will not be 
part of an executive team. Nor will the beneficiary prepare financial reports for nonmanagement groups such as 
stockholders, creditors, regulatory agencies, and tax authorities. Given this significant dissimilarity, the scope and 
complexity of the beneficiary's duties and responsibilities do not rise to the level of an accountant. Consequently, 
a bachelor's degree in accounting or a related field - which the DOL states is required for a management 
accountant - would not be required for the proffered position. A review of the Handbook finds that the proposed 
2 At its Internet site (http://www.nsacct.org/acat.asp), the National Society of Accountants describes ACAT as 
follows: 
The Accreditation Council for Accountancy and Taxation (ACAT) is an independent accrediting 
and monitoring organization affiliated with the National Society of Accountants. ACAT accredits 
professionals in independent practice who have demonstrated measurable knowledge of the 
principles, practices, and ethical standards of accounting, taxation, information technology and related 
financial services. 
The ACAT Internet site (http://www.acatcredentials.org/index.html) states that the examination tests 
"proficiency in financial accounting, reporting, statement preparation, taxation, business consulting services, 
business law, and ethics." 
These duties entail primarily the business or accounting associate degree-level activities listed on the 
Skyline College website. 
WAC 04 2 16 50946 
Page 6 
duties are primarily the duties of bookkeeping, accounting, auditing and financial clerks. No evidence in the 
Handbook indicates that a baccalaureate or higher degree, or its equivalent, is required for these positions. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from firms, individuals, or professional associations regarding an industry 
standard, or documentation to support the complexity or uniqueness of the proffered position; and the duties 
that comprise the proffered position are described in generalized terms that do not establish the position as 
sufficiently unique or sufficiently complex to require a bachelor's degree level of knowledge in a specific 
specialty. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As the evidence of record indicates that the proffered in-house accountant 
position is a new position, the petitioner, therefore, has not established the criterion set forth at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4) - the nature of the specific duties is 
so specialized and complex that knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied